No. 01-721
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 346
LAWRENCE E. BRUMIT, III and LEILA P. BRUMIT,
husband and wife; RAYMOND W. KARR and JANE W.
KARR, husband and wife; TODD L. SAUR and RAYLENE
K. SAUR, husband and wife; WALTER J. FILLMORE and
DOROTHY J. FILLMORE, husband and wife,
Plaintiffs and Appellants,
and
BRYAN BOLIN, LISA BOLIN, RAYMOND BOLIN,
LORETTA BOLIN, and BOLIN RANCHES, a Montana
corporation,
Appellants,
v.
ROBERT LEWIS and ROSE LEWIS (deceased),
Defendants and Respondents.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Zane K. Sullivan & Z. Kent Sullivan, Sullivan, Tabaracci & Rhoades,
Missoula, Montana
For Respondents:
John D. Greef, Hamilton, Montana; Robert B. Brown, Stevensville, Montana
Submitted on Briefs: March 7, 2002
Decided: December 30, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellants Lawrence E. Brumit and Leila P. Brumit (Brumits), Raymond W. Karr and
Jane W. Karr (Karrs), Todd L. Saur and Raylene K. Saur (Saurs), and Walter J. Fillmore and
Dorothy J. Fillmore (Fillmores) filed a complaint to quiet title in the Twenty-First Judicial
District Court, Ravalli County. They requested a determination that no other person had a
right of access by way of an easement over their respective properties, and sought an
injunction to permanently prevent any person from trespassing on such properties. Two of
the named Defendants in the complaint, Respondents Rose Lewis and her son Robert Lewis
(Lewises), filed a counterclaim, alleging that they had established an easement by
prescription over the properties in dispute. The parties Bode, et al, intervened in the case,
and asserted that they had also established an easement over the properties in dispute, as well
as over the properties of Appellants Bryan Bolin, Lisa Bolin, Raymond Bolin, Loretta Bolin,
and Bolin Ranches (Bolins).
¶2 Following a bench trial, the District Court entered an interlocutory judgment on the
complaint to quiet title, granting the Lewises an easement by prescription over the properties
in dispute, as well as over the Bolin properties. The judgment was then certified for purposes
of appeal. The Brumits, Karrs, Saurs, Fillmores, and Bolins (the Appellants) appeal the
judgment of the District Court, with regard to the prescriptive easement granted to the
Lewises. We affirm the judgment of the District Court.
¶3 We restate the sole issue on appeal as follows:
2
¶4 Did the District Court err when it granted the Lewises a prescriptive easement over the
properties of the Appellants?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 The parcels of property in dispute here are located in the Ambrose Creek drainage in
Ravalli County, Montana. The portion of the road in dispute runs across the Appellants’
properties, coming to an end on the property of the Lewises. A brief history of the ownership
of the Lewis property, as pertinent to the evidence supporting the easement, is set forth
below.
¶6 In 1937 and 1938, Theodore Brechbill (Theodore) acquired the property currently
owned by the Lewises from Dr. Louis Fales and Ida Fales. Theodore used the Lewis
property for various agricultural and recreational purposes, and lived on a portion of the land
for a number of years. In 1992, Theodore leased the Lewis property to his nephew Robert
Lewis (Robert). Upon Theodore’s death in 1995, Theodore’s sister, Rose Lewis (Rose),
acquired the Lewis property by deed. In December of 1995, Rose leased the Lewis property
to her son Robert, via a lease-option agreement. Rose is currently deceased, and Robert is
the personal representative of her estate, as well as her successor in interest with regard to the
Lewis property. Between 1900 and 1985, members of the Brechbill family, including
Theodore’s mother, Octavo Brechbill (Octavo), were also in possession of the property
adjacent to the Lewis property. This adjacent property is currently owned by the Brumits.
¶7 This is not the first time that the use of the road in dispute has been the subject of
litigation. The right of the Brechbills to use the road to reach their properties was litigated in
3
Pentz v. Brechbill, Cause No. 7503, Fourth Judicial District Court, Ravalli County, 1946.
Percy Pentz was the previous owner of the property on which the disputed portion of the road
begins. In 1944, a dispute arose between Pentz and the Brechbills over the Brechbills’ use of
the road on Pentz’s property. Pentz sought to enjoin the Brechbills from crossing his land,
while the Brechbills claimed that their predecessors had purchased a right-of-way over
Pentz’s land in the 1920s. The Pentz Court granted Octavo and Theodore an easement
appurtenant to Octavo’s property, in which they had the legal right to pass over the property
owned by Pentz. In the instant case, the District Court took judicial notice of the Pentz
decision, as the road at issue in Pentz is the same road at issue in the case before us.
¶8 With the exception of the Pentz litigation, there was never any hostility from
Theodore’s neighbors regarding Theodore’s use of the disputed road. However, when Robert
Lewis acquired an interest in the Lewis property in 1992, the relationship between the
neighbors shifted. Although there had always been a series of unlocked gates across the
disputed road, at least one of these gates was locked by Lawrence Brumit sometime during
Robert’s occupation of the Lewis property. Robert reacted to Brumit’s action by taking a
gate off its hinges, sparking controversy between the long-time neighbors.
¶9 On August 30, 1996, the Brumits, Karrs, Saurs and Fillmores filed a complaint to
quiet title with the District Court, in which they listed both named and unnamed defendants.
The complaint to quiet title requested a determination that no other person had a right of
access by way of an easement over the complainants’ respective properties. The complaint
further requested an injunction to permanently prevent any person from trespassing over the
4
properties. Finally, under breach of contract and trespass theories, the complaint sought to
recover damages for reduction in property value, as well as the costs and attorney’s fees
resulting from the action.
¶10 Rose and Robert Lewis were two of the named Defendants in the complaint to quiet
title. On December 4, 1996, the Lewises counterclaimed, asserting that they possessed a
valid easement over the properties in dispute, which was established by prescription. The
case became further complicated when the parties Bode, et al, intervened and joined the
Bolins. However, the claims of Bode, et al, are not at issue here. Following disposition of
these claims, the only issue remaining in the case at the time of trial was whether the Lewises
had established a prescriptive easement over the properties of the Appellants.
¶11 Pursuant to Rule 56, M.R.Civ.P., the Lewises brought a motion for summary judgment
on February 2, 1999, alleging that they had obtained an easement by prescription over the
Appellants’ properties. The Appellants filed a cross-motion for summary judgment against
the Lewises on February 22, 1999. The District Court denied both summary judgment
motions on November 1, 1999, and the case proceeded to a non-jury trial on May 4, 2000.
On July 6, 2001, the District Court issued its findings of fact, conclusions of law and
interlocutory judgment, granting the Lewises an easement by prescription over the north fork
of the disputed road on the properties of the Appellants. Pursuant to Rule 54(b), M.R.Civ.P.,
the District Court certified its interlocutory judgment as final on August 9, 2001. On August
15, 2001, the Appellants appealed the judgment of the District Court.
STANDARD OF REVIEW
5
¶12 We review a district court’s findings of fact to ascertain whether they are clearly
erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. A finding is
clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if our review of the record convinces us that a
mistake has been committed. Kovarik v. Kovarik, 1998 MT 33, ¶ 20, 287 Mont. 350, ¶ 20,
954 P.2d 1147, ¶ 20. The standard of review of a district court’s conclusions of law is
whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve
Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
DISCUSSION
¶13 Did the District Court err when it granted the Lewises a prescriptive easement
over the properties of the Appellants?
¶14 The District Court found that if a prescriptive easement was in fact established over
the Appellants’ properties, it was established by the Lewises or their predecessors between
1927 and 1995. Louis and Ida Fales owned the Lewis property until 1937, however, they left
the property sometime in the late 1920s. Theodore Brechbill managed the property in their
absence, finally acquiring it from the Fales in 1937 and 1938. Rose Lewis claimed no
interest in the property until she inherited it in 1995, and as such, her use of the road is
inconsequential to this case. Similarly, because Robert Lewis did not lease the Lewis
property until 1992, he had no interest in the property until the last three years of the period
at issue. Therefore, it is Theodore Brechbill’s use of the disputed road which is crucial to the
instant case, as Theodore owned the Lewis property from 1937 until his death in 1995.
6
Accordingly, we conclude it is proper for the Lewises to rely on the actions of Theodore
Brechbill, their predecessor in title, to prove their prescriptive easement claim.
¶15 To establish an easement by prescription, the party claiming the easement must show
open and notorious, exclusive, continuous, uninterrupted, and adverse use of the claimed
easement for a full five-year period. Lemont Land Corp. v. Rogers (1994), 269 Mont. 180,
183, 887 P.2d 724, 726. The term “open and notorious use” is defined as “a distinct and
positive assertion of a right hostile to the rights of the owner and brought to the attention of
the owner.” Amerimont, Inc. v. Gannett (1996), 278 Mont. 314, 323, 924 P.2d 1326, 1333.
“Exclusive use” means that “the right of the claimant must rest upon its own foundations and
not depend upon a like right in any other person.” Lemont, 269 Mont. at 184, 887 P.2d at
727. This Court has defined “continuous use” as that which “is made often enough to
constitute notice of the claim to the potential servient owner.” Lemont, 269 Mont. at 184,
887 P.2d at 727. “Uninterrupted use” is “use not interrupted by the act of the owner of the
land or by voluntary abandonment by the party claiming the right.” Lemont, 269 Mont. at
184, 887 P.2d at 727. Finally, the term “adverse use” means use exercised under a claim of
right, and not as a mere privilege or license revocable at the pleasure of the owner of the
land. Such a claim must be known to, and acquiesced in by, the owners of the land. Lemont,
269 Mont. at 185, 887 P.2d at 727. The party claiming the easement has the burden to prove
each element of prescription with clear and convincing evidence. Wareing v. Schreckendgust
(1996), 280 Mont. 196, 205, 930 P.2d 37, 43.
¶16 The Appellants assert that the Lewises have not adequately established the elements of
7
prescription in the instant case. Particularly, the Appellants maintain that Theodore’s use of
the disputed road failed to satisfy the prescriptive elements of open and notorious use,
exclusive use, and adverse use. The Appellants do not specifically allege that the Lewises
failed to satisfy the prescriptive elements of continuous and uninterrupted use. As such, this
Court declines to discuss these two elements.
¶17 In support of their contention that the Lewises failed to prove the open and notorious
element of their prescriptive easement claim, the Appellants rely upon the definition of “open
and notorious” provided in Amerimont, referenced above, and the definition of “notice”
provided in Mildenberger v. Galbraith (1991), 249 Mont. 161, 167, 815 P.2d 130, 134-35.
In Amerimont, we stated that “open and notorious” use requires a distinct and positive
assertion of a right hostile to the rights of the owner. We also specified that such an assertion
must be brought to the owner’s attention. Amerimont, 278 Mont. at 323, 924 P.2d at 1333.
In Mildenberger, 249 Mont. at 167, 815 P.2d at 134-35, we noted that:
an open and notorious possession is such that it will give the owner of the
property right either actual knowledge of the hostile claim, or be of such a
character as to raise a presumption of notice, or be so patent that the owner
could not be deceived.
The Appellants maintain that Theodore’s visible use of the disputed road was not akin to a
distinct assertion made by Theodore concerning a prescriptive claim. The Appellants also
assert that they received no notice of Theodore’s adverse use.
¶18 The District Court, however, found that the Appellants had actual knowledge of
Theodore’s use of the road for several decades prior to this action, as Theodore’s use was
8
never covert or hidden. The District Court noted witness testimony, which indicated that
Theodore was observed by several area landowners, including the Brumits, both using and
maintaining the road. Furthermore, there is no evidence that Theodore concealed his regular
use and maintenance of the road from any of the parties to this case. As such, Theodore’s
use and maintenance of the road was adequate to provide the Appellants with notice that he
was making a claim to use of the road. Accordingly, we conclude that Theodore’s actions
were sufficiently open and notorious to establish the Lewises’ prescriptive easement claim.
¶19 The Appellants also allege that the Lewises failed to satisfy the exclusivity element of
their prescriptive easement claim. To bolster this allegation, the Appellants cite our
discussion of exclusivity in Lemont. We stated in Lemont that “it is not necessary that the
person asserting a right by prescription be the only one who used the roadway, so long as the
right was exercised under a claim of right independently of others.” Lemont, 269 Mont. at
184, 887 P.2d at 727. The Appellants contend that Theodore’s claim was not an independent
claim of right, but rather a right he enjoyed via his mother Octavo’s claim of right. As noted
above, Octavo was granted an easement appurtenant to the Brechbill property, which was
adjacent to the current Lewis property, in Pentz in 1946. The Appellants assert that absent an
indication to the contrary, neither the Appellants, nor their predecessors, had reason to
believe that Theodore’s use of the road was occurring pursuant to anything other than the
legal right his mother held.
¶20 The District Court examined the pleadings from Pentz, noting that Percy Pentz
admitted, in his original complaint, that his property was subject to the rights of both Octavo
9
and Theodore to travel across his property by way of the road. Pentz’s admission was a
concession that Theodore had a legal right, independent from Octavo’s right, which was
appurtenant to the former Brechbill property. Therefore, Theodore’s right to use the road to
cross the properties in dispute was an exclusive right. As such, we hold that Theodore’s use
of the disputed road satisfies the exclusivity element of the Lewises’ prescriptive easement
claim.
¶21 Relying upon five related theories, the Appellants finally assert that Theodore’s use of
the disputed road was not adverse. The District Court addressed the adversity element, citing
Rappold v. Durocher (1993), 257 Mont. 329, 333, 849 P.2d 1017, 1020, where we held that
“adverse use is established by presumption if all other elements of the claim are
demonstrated.” If the party claiming prescription establishes all of the other elements, the
burden falls on the opposing party to show that the use was not adverse, but rather,
permissive. Rappold, 257 Mont. at 333, 849 P.2d at 1020. The District Court found that no
such permissive use existed in the instant case. We agree with the District Court, for the
reasons set out below.
¶22 The Appellants allege that Theodore’s use of the road began pursuant to either
neighborly accommodation or implied permission, both of which were insufficient to
establish adversity. In support of this allegation, the Appellants cite Amerimont, in which we
indicated that use based on neighborly accommodation or courtesy is not adverse and cannot
ripen into prescriptive use. Amerimont, 278 Mont. at 324, 924 P.2d at 1333. The Appellants
assert that the facts of Amerimont mirror the facts in the instant case. In Amerimont, we held
10
that the appellant, Amerimont, Inc., had not established a prescriptive easement over
respondent Gannett’s property because Amerimont was unable to satisfy the element of
adversity. Amerimont, 278 Mont. at 325, 924 P.2d at 1334. We determined that “Amerimont
and its predecessors had the privileged use of the roadway pursuant to the permission and
neighborly accommodation extended by Gannett and his predecessors. . . . The roadway was
used by the express or implied permission of the landowner.” Amerimont, 278 Mont. at 324-
25, 924 P.2d 1333-34.
¶23 The facts of Amerimont are distinguishable from those in the case before us. Our
decision in Amerimont turned on evidence of the longstanding permission which Amerimont
received, allowing it to cross Gannett’s property. In the instant case, there is no evidence that
Theodore, Robert Lewis, or the Fales ever requested or received any type of permission to
use the disputed road. In fact, Theodore and Octavo engaged in litigation to establish their
right to use this road in Pentz in 1946. The rights of Theodore and Octavo to use the road
were hostile to the rights of Percy Pentz, who commenced the lawsuit to prevent the
Brechbills from using one of the roads on his property. As a result of the litigation, Octavo
and Theodore were granted an easement over Pentz’s property by the Pentz Court, not by
permission from Pentz. Furthermore, there is no evidence that, subsequent to the Pentz
decision, the Brechbills or the Lewises obtained express permission to use the road from any
of the other neighboring landowners.
¶24 The record is also devoid of any evidence that the Appellants gave the Lewises
permission, express or implied, to use the disputed road. Rather, use of the road was at times
11
a struggle for the Bechbills and for Robert Lewis. Pentz’s lawsuit, and the Brumits’ lock on
the gate, indicate that neighboring landowners never implied to the Brechbill family that they
had permission to use the road to reach their properties. Accordingly, we hold that the
Appellants failed to establish that Theodore’s use of the disputed road occurred pursuant to
either neighborly accommodation or implied permission.
¶25 In the alternative, the Appellants maintain that if Theodore’s use of the road occurred
pursuant to a granted right, then such use was permissive, and could not be adverse. The
Appellants further assert that, as a result of their assumption that Theodore was acting under
a granted right, they had no notice of Theodore’s prescriptive claim. The Appellants support
this assertion with the facts of Pentz. However, the easement granted to Theodore and
Octavo in Pentz was appurtenant to the former Brechbill property, not to the Lewis property
which Theodore acquired in 1937 and 1938. That is, the easement Theodore was granted
over Pentz’s property was based upon his family’s interest in the former Brechbill property,
not his individual ownership of the Lewis property. Theodore never received an easement
which was appurtenant to the Lewis property. Theodore’s use of the road to reach the Lewis
property was never exercised under a granted right, and such use was therefore adverse to the
rights of the owners of the properties in dispute. Theodore used the road to reach the Lewis
property from the late 1920s until his death in 1995. This seventy-year period provided the
Appellants and their predecessors with considerable notice of Theodore’s presence, and
afforded them ample opportunity to either object to or condone Theodore’s use of the
disputed road. As such, the Appellants are unable to rely on the easement granted to
12
Theodore in Pentz to rebut the presumption that his use of the road was adverse.
¶26 Third, the Appellants contend that simple, longstanding use of an easement is
insufficient to create title by prescription, and instead creates a presumption of permission.
The Appellants support this contention in reliance upon Wilson v. Chestnut (1974), 164
Mont. 484, 489, 525 P.2d 24, 26, which states that “the mere use of the road in controversy
for the required time is not sufficient to create a title by prescription.” The Appellants also
cite White v. Kamps (1946), 119 Mont. 102, 116, 171 P.2d 343, 349, for the principle that
longstanding use of an easement, without evidence of adversity, will not ripen into a
prescriptive right.
¶27 However, as noted above, there is evidence of more than just simple, longstanding use
of the road by Theodore. There is evidence of adversity. Furthermore, as we stated above, if
the party claiming prescription establishes all of the other elements, the burden falls on the
opposing party to show that the use was not adverse, but rather, permissive. Rappold, 257
Mont. at 333, 849 P.2d at 1020. In the instant case, the Appellants have not established that
Theodore’s use of the disputed road was permissive, and as such, Theodore’s use of the road
is presumed to be adverse.
¶28 Fourth, the Appellants assert that if the use of a piece of land is unexplained, no
presumption of adversity arises. The Appellants cite Warnack v. Coneen Family Trust
(1994), 266 Mont. 203, 215, 879 P.2d 715, 723, for the proposition that “a prescriptive
easement cannot be established through ‘unexplained’ use of the road or trail in question; the
requisite elements for establishing a prescriptive easement must be proved by the claimant.”
13
We further noted in Warnack that “unexplained” use is “simply a use, the origin or
continuation of which is undecipherable, unknown or is, otherwise, without an articulable
reason or justification.” Warnack, 266 Mont. at 212, 879 P.2d at 721. The Appellants
contend that there is a lack of evidence as to the original use of the disputed road, and as
such, the use of the road is unexplained. We disagree. It is undisputed that Theodore and the
Brechbill family traveled on the road for no other purpose than to reach their property. The
use of the easement is therefore not unexplained.
¶29 The Appellants’ final contention is that the District Court erred in finding that the
Lewises had established a prescriptive easement against their own family members. This
Court stated in Cope v. Cope (1971), 158 Mont. 388, 391-92, 493 P.2d 336, 338, that
“members of a family may not acquire an easement by prescription against each other in the
absence of a showing of a clear, positive, and continued disclaimer and disavowal of title.”
In Cope, the plaintiff was denied an easement over his uncle’s property, mainly because the
plaintiff was unable to prove the existence of hostility, as various parties to the case had
regularly requested permission to use the easement. Additionally, permissive use of the
easement was specially given to family members and their guests, as other persons traveling
on the road were charged a fee for its use. Cope, 158 Mont. at 393-95, 493 P.2d at 339-40.
The Appellants allege that in the instant case, as with the family in Cope, the Lewises failed
to prove the level of hostility necessary to establish a prescriptive easement claim against
family members.
¶30 We distinguish the facts of Cope from the case at bar. In Cope, we concluded that the
14
parties to the case, the Cope family, had regularly requested and received permission to use
the disputed easement. Cope, 158 Mont. at 393, 493 P.2d at 339. However, as we stated
above, there is no evidence in the instant case that Theodore ever requested or received any
type of permission from the Appellants to use the disputed road. There is likewise no
evidence that Theodore received permission from the Brechbills to use the road to cross the
Brechbill family property. Furthermore, while the Pentz decision granted Theodore and
Octavo the right to cross the Pentz property, Theodore was never granted the right to cross
the Brechbill property to reach his own property. Therefore, the Brechbills were clearly
aware that Theodore was using the road to reach his own property, independent of any right
granted to him by Pentz.
¶31 Cope is further distinguishable from the instant case based upon the Brechbills’ failure
to regulate Theodore’s actions. In Cope, family members refused to permit unlimited access
to the disputed road, while in the case before us, the Brechbills declined to place any such
regulations on Theodore’s use of the road. That is, despite the limited rights granted to
Theodore in Pentz, there is no evidence that Octavo or the other Brechbills ever attempted to
terminate or control Theodore’s use of the disputed road.
¶32 Finally, the District Court examined the pleadings from Pentz and found that
Theodore had established an easement against his family members. The District Court noted
that both Octavo and Theodore asserted, in 1946, that they had a right of way across Pentz’s
land, referring to themselves in the plural form throughout the pleadings. The pleadings from
Pentz indicate that Octavo and Theodore viewed themselves as separate landowners, and
15
indeed they were, as Theodore did not acquire any interest in the Brechbill family property
until Octavo’s death in 1973. Therefore, we conclude that a clear and positive disclaimer and
disavowal of title was demonstrated by Octavo as to her son Theodore. Further, this
disclaimer and disavowal of title was continuous, as Octavo retained absolute ownership of
the Brechbill family property from 1912 to 1973, only passing it to Theodore and his siblings
at her death.
¶33 As such, Theodore’s prescriptive use of the disputed road commenced in 1937, the
year he acquired a portion of the Lewis property and began regularly using the road. In
successive years, and until his death in 1995, Theodore’s use of the disputed road was open
and notorious, exclusive, continuous, uninterrupted, and adverse. Therefore, Theodore’s use
of the road established a prescriptive easement against the Appellants and their predecessors,
as well as against his own family members on the Brechbill property. Accordingly, we hold
that the District Court did not err in granting the Lewises a prescriptive easement over the
properties of the Appellants.
¶34 For the foregoing reasons, the judgment of the District Court is affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
16
Justice Jim Rice dissenting.
¶35 I respectfully dissent. Admittedly, the decision reached by the District Court, and
affirmed here, appears to be an equitable one, given the longstanding use of the disputed road
by the Brechbill family, who were Respondents’ predecessors in interest. However, I do not
believe the claim satisfies all of the elements required by our case law to establish a
prescriptive easement, and therefore, I believe a different result is compelled. Specifically,
exclusive use and adverse use were not established by the evidence.
¶36 The District Court stated in Finding of Fact #21 that “[i]t appears that [Theodore’s] use
which occurred between 1937 and 1992 was exclusive, i.e., not dependent upon Octavo’s right.”
The Court confirms this determination in ¶ 20 of the Majority Opinion:
The District Court examined the pleadings from Pentz, noting that Percy Pentz
admitted, in his original complaint, that his property was subject to the rights of both
Octavo and Theodore to travel across his property by way of the road. Pentz’s
admission was a concession that Theodore had a legal right, independent from
Octavo’s right, which was appurtenant to the former Brechbill property. Therefore,
Theodore’s right to use the road to cross the properties in dispute was an exclusive
right. As such, we hold that Theodore’s use of the disputed road satisfies the
exclusivity element of the Lewises’ prescriptive easement claim.
The conclusion that the Pentz litigation established a legal right in Theodore to use the disputed road
which was independent from Octavo’s right is, in my view, erroneous. Although Pentz had asserted
that Theodore had a right to use the road, that assertion was premised entirely on Theodore’s role as
the manager of Octavo’s property, and upon Octavo’s ownership of the property. Pentz’s complaint
did not specifically address this distinction, but the proposed findings he submitted to the court did:
That such rights [to the disputed road] as the defendants may have had in the said
“old road” were appurtenant to the lands owned by the defendant, Octavo Brechbill.
That the defendant, Theodore Brechbill, is the manager of the said lands owned by
the defendant, Octavo Brechbill.
17
The Pentz court adopted this proposed finding as its own, and entered a decree concluding “[t]hat the
defendant, Octavo Brechbill, is the owner of a permanent easement” over the disputed road. The
judgment did not declare that Theodore was an owner of an easement resulting from the ownership
of his own lands, which were not at issue in Pentz. Thus, Octavo’s ownership of the easement and
Theodore’s employment by Octavo formed the basis of Theodore’s right to use the disputed road.
The Majority Opinion acknowledges as much when discussing the adverse use requirement, stating
that the easement granted to Theodore over the Pentz property “was based upon his family’s interest
in the former Brechbill property . . . .” Majority Opinion, ¶ 25 (emphasis added). Outside Octavo’s
ownership of the Brechbill property, Theodore had no claim to the easement, and, because his own
lands were not a subject of the litigation, his interest as established in the Pentz litigation was not
independent. Consequently, that use was not exclusive, which requires a showing that “the right was
exercised under a claim of right independently of others.” Lemont, 269 Mont. at 184, 887 P.2d at
727.
¶37 The District Court’s findings undermined its conclusion that Theodore’s use was
exclusive:
The evidence indicates that Theodore Brechbill’s use of the disputed road was
either made pursuant to a claim of legal right his family had acquired, any
appurtenant easement acquired by conveyance from Ida Fales, or by
acquiescence of his mother or all of the above.
Finding of Fact #20, Order of July 6, 2001. The District Court later found that Theodore had
not acquired an easement in the conveyance from Fales, thus leaving either “a claim of legal
right his family had acquired” or “acquiescence of his mother” as the possible sources of his
interest. As already seen, the “family right” was premised upon Octavo’s ownership interest,
18
and not Theodore’s ownership interest. Therefore, neither of these remaining alternatives
constituted an independent interest necessary to establish Theodore’s use as exclusive.
¶38 Absent a showing of “exclusive” use, as our law defines that requirement, Theodore’s
claim must fail.
¶39 Though not necessary for resolution of this matter, I would also find that there was
insufficient evidence to demonstrate adverse use by Theodore. I acknowledge that there is evidence
in the record consistent with a finding of adversity, but it is very minimal. In finding sufficient
evidence to support adverse use, the Court relies on the evidence it found in support of the element
of open and notorious, that being Theodore’s long time use, and his maintenance of the road. See
Majority Opinion, ¶¶ 27 and 18. However, as the Court acknowledges, long time use alone
does not establish adversity; and while maintenance can be evidence of adverse use,
maintenance provided by Theodore in this case could also be consistent with his right to use
the road as manager of Octavo’s property, and thus, non-adversarial. The testimony in the
record seems to be either ambiguous on this point, or supportive of a conclusion that
Theodore was providing maintenance in support of Octavo’s interest, with the exception of
brief testimony offered by Frank Brechbill:
Q. Did [Theodore] also do maintenance from that part of the roadway that
went beyond your home place and on up to his property, or the Fales’
property?
A. Yes, he did.
Q. Did you see him do that?
A. Yes, I did.
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In analyzing this issue, it should be remembered that maintenance of a disputed road does not
necessarily constitute prima facie evidence of adverse use. See Cope, 158 Mont. at 394-95,
493 P.2d at 340. It should be further remembered that this is a case of alleged prescriptive
use within a family, which, in accordance with Cope, requires sufficient proof to overcome
an inference that the use was non-adversarial: “[A] family relationship existing between the
litigants creates an inference in itself that the use in controversy was permissive.” Cope, 158
Mont. at 395, 493 P.2d at 340 (emphasis added).
¶40 The District Court and this Court have only partially applied Cope. It is correct that
Cope requires a clear, positive and continued disclaimer and disavowal of title to be
demonstrated within the family. However, that showing is required in addition to proof of
the ordinary elements of prescriptive easement, and must also rebut the inference that the
family use at issue is permissive. Given the minimal evidence of maintenance unrelated to
Octavo’s interest, I would conclude that the element of adversity was not proven at trial.
¶41 I would reverse the judgment of the District Court.
/S/ JIM RICE
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